By: Parmanand Pandey, Advocate, Supreme Court (with addition by: Shreepal Singh)
Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created a flutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28th March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could be a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of the ‘promiscuous character’.
The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent’.
Judgement reads like a fiction, which elaborates that the victim has come to the house of the accused on his invitation. Both the victim and the accused consumed liquor in varying measures. The accused was displaying highly emotional behaviour in a drunken state. Somebody else was also to join them in the drinking session but he did not turn up. The victim’s inherent motherly love started overflowing towards the accused. Then the accused expressed his desire to make love with her. The victim initially says ‘No’ but ultimately goes along. In her mind, she remembered the case of Nirbhaya, a hapless girl who was brutally raped and killed and succumbed to the desire of the victim. She even made a mental move of feigning orgasm so as to end the ordeal and participated in the act. After completing the act, the accused asked her to do it again. In the meantime, the privacy was disturbed with the ringing of the doorbell and the arrival of the two associates of the appellant. The questions which arise are whether or not there was consent; whether the accused mistakenly accepted the moves of the victim as consent; whether the feelings of the victim could be effectively communicated to the accused and whether mistaking all this for consent by the accused is genuine or only a ruse for his defence. At what point of time and for which particular move, the accused did not have the consent of the victim is not known.
To answer the aforesaid questions, it would be necessary to see what the word “consent”, especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredient of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. The sermon of the Court goes on and says that ‘in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean ‘yes’ in case of yes or ‘no’ in case of no. Everyone is aware that individuals vary in relation to exposing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus, gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today’s modern world with equality being the buzzword and where both genders are vociferous in expressing that equality in every possible way, such may not be the situation’.
There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the victim and the accused and after coming to know about the alleged incident, she had corresponded with the victim wherein she had informed her that the accused had been under a rehabilitation regimen for his ‘bipolar mental condition’. The victim rubbished such an explanation by stating that the occurrence had to do more with the physical power of the accused than the mental condition. Though the mental condition of the appellant may not be a ground to justify any act which is prohibited under law, the same can be taken into consideration while deciding as to whether the accused had the correct cognitive perception to understand the exact import of any communication by the other person. Under such circumstances, the benefit of the doubt is given to the appellant.’
This is bizarre logic and it has shocked the conscience of the legal community.
The Punjab and Haryana High Court, which acquitted three persons, who were convicted for having raped a woman at Sonipat is equally disturbing. It is a well-established principle of the criminal jurisprudence that the benefit of doubt is given to the accused when his/her crime is not proved beyond all reasonable doubts but here in the case the court has not only acquitted the accused persons but damned the victims by quoting her statements from examination like, ‘it is correct that room was got booked by me on my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me’ and then goes on saying that ‘it is actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world’. It further condemned the allegations of the victim to be an act of blackmailing.
The Court went on to say that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents’.
It is strange when there is growing awareness for the gender desensitization these judgements have dealt a severe blow to victims by letting off the accused on such grounds as are not found at all in substantive or procedural criminal law.
Addition by: Shreepal Singh
These judicial decisions rendered by the two High Courts have really opened a Pandora box by leaving a secured real world of humans (where ‘no’ means no) and entering into a virtual world of human psychology (where ‘no’ may mean yes).
Once the courts enter into such a wavey world, then there would be no end to their waywardness in the absence of any established light to lit their path, for which courts are not equipped to deal with. The courts are designed to deal with normal human beings in an organized society, which has evolved prudent ways to deal with their problems.
A normal human being is almost 50% his or her biology and the rest 50% his or her psychology. We are daily taught in our modern educational institutions that Sigmund Freud and Karl Jung had made epoch-making discoveries that the major part of human personality is shaped by their suppressed parts of ‘unconscious and subconscious’ mind.
If the society somehow allowed this ‘suppressed’ part of individuals to come out in the open under any pretext whatsoever, then there would be havoc in the society. These two pioneers of modern psychology forewarn us that, in that event, every woman – including one’s mother and sister – would be an intended target of a male for his sexual satisfaction. It is a dangerous world (of thoughts) that has been checked in their intended fulfilment by the accepted norms of humans in an organized and civilized society.
Courts would do well by not opening up new fronts of human disputes on an unchartered path by their legal interpretations. Rather they should endeavour to minimize them.
No court can bring in an ‘alibi of ignorance’ in defending their ground on such waywardness. They are supposed to be wise and show a path forward to the society by their wisdom through their judicial decisions.
Let us take this case. The court found (in the Delhi case) that the victim had come to the house of the accused on his invitation. Now what is the ground to assume that the accused had an innocent intention in inviting the victim to his house? There is more probability – as the aforesaid two psychologists would have us believed – that the accused invited the victim to his house to satisfy his lust, if the circumstances permitted him to do so. If such may be the intention (thoughts lurking behind in his mind), a man would do all that what he can do – resort to all means – to prepare – or make – a woman ready to accomplish his hidden sexual objective.
This would be his way to obtain her consent by any means. Should he be allowed by the society to do so? Should the court not look into this aspect of human psychology while interpreting a ‘no’ as ‘yes’?
We pause here for a moment to assess things on a balanced scale.
Let us come to the side of the intended victim – the woman – and look at these circumstances from her angle. She knows that the man is ready and insisting, and physically more powerful than her. She may think – rather would think – that he would prove to be a real- self-of-a-man – a brute animal, ready to go to any extent to accomplish his objective. She may be willing or she may be unwilling.
Suppose she is not willing and says a ‘feeble no’. Does this ‘feeble no’ means ‘yes’? She is a woman and knows by her observation of the world – and by keeping in her mind the precedents in our society, Nirbhaya et al – that if her ‘feeble no’ is not taken by the other side as ‘yes’, it would prove to be her end. Under such trying circumstances she calculates in her mind that for her it is far better to be raped despite her no (which the court mistakingly takes as a ‘feeble no’ amounting to ‘yes’) than to be dead at the hands of the other side.
As a prudent human being, she may devise and adopt all means to end her ordeal as quickly as possible – seem willing, feign orgasm etc. We know after Nirbhaya of Delhi and countless Nirbhayas in other parts of the world that such a possibility is not a fiction but the hard reality, which our society and courts have to deal with.
And here comes in ‘religion’ in this – in an otherwise already complex – situation. Religion is not an alien to the human society; for the most part, humans and their thoughts are governed by their religion. No court should ever refuse – under an impression that our laws are ‘secular’ – to look into the religious aspect of human personality. Some religions may encourage the man to fulfil his sexual objective – provided the other side is of a religion othan his own; in the real world, precedents abound in what has been done to Yezidi women on religious consideration, albeit the crime committed in the course of a religious war.
But, otherwise, most of the religions to cope with such a ‘trouble-spot’ of human nature have purposely designed certain moral prescriptions – that are restrictive and seem outmoded today – against an unjustified getting together of male and female in an ‘out of the public view’ or secluded places, against which prescriptions our courts in the changed times show abhorrence.
It may all be justified on the part of courts but with one caveat: To compensate for the loss of checking ‘moral and religious values’ brought by our changing times, the courts should be slow in allowing the play of inhibited human libido by their judicial determinations.
Till this caveat is taken care of by our courts, it will be prudent on their part to treat a woman’s ‘Feeble No’ to mean a ‘No’, not less than her ‘Emphatic No’. This has not been done by these two court cases.
Filed under: Contemporary World
